State Ex Rel. Silverman v. Coleman

Decision Date01 August 1939
Citation190 So. 811,139 Fla. 656
PartiesSTATE ex rel. SILVERMAN v. COLEMAN, Sheriff.
CourtFlorida Supreme Court

Original proceeding for writ of habeas corpus by the State on the relation of Samuel S. Silverman, against D. C. Coleman, as sheriff of Dade county, Fla.

Writ quashed and petitioner remanded.

COUNSEL Sibley, Giblin & Schroeder, of Miami, for relator.

George Couper Gibbs, Atty. Gen., Thomas J. Ellis Asst. Atty. Gen., and Robert R. Taylor, Jr., of Miami, for respondent.

OPINION

TERRELL Chief Justice.

On June 3, 1938, the county solicitor of Dade County filed an information in the criminal court of record charging that petitioner did on June 13, 1936, commit the crime of forgery. On the same date a second information was filed in the same court charging that petitioner did on Cotober 7, 1936, utter a forged instrument, and that he (petitioner) did on December 10, 1936, falsify a public record. A third information was filed on the 14th of October 1938, charging petitioner with having committed the crime of embezzlement on October 20 1936.

Petitioner was arraigned on December 20, 1938, and interposed a plea in abatement to the latter information charging that it was not sworn to under oath as required by Section 28, Article 5 Constitution of Florida, and Section 8257, C.G.L. of 1927. The County Solicitor thereupon withdrew the information, verified it under oath dated December 20, 1938, as the law requires and filed it. The trial court then struck the plea in abatement. There was no arraignment on the first and second informations, but they were on the last named date withdrawn from the files of the court properly verified and refiled in like manner as the last information. Motions to quash the new informations were denied.

Petitioner now seeks relief from prosecution under said informations by habeas corpus, relying on the ground specified in his plea in abatement. The return to the writ issued by this court interposes both the original and the amended informations as bases for refusing to release the petitioner.

Section 7113, C.G.L. of 1927, requires that the offenses with which petitioner is charged including all other offenses not punishable by death must be prosecuted within two years after the same shall have been committed. This court has repeatedly held that the finding of an indictment or the filing of an information will be deemed sufficient to have commenced a prosecution. State ex rel. Melson v. Peeler, 107 Fla. 615, 146 So. 188, 90 A.L.R. 447.

Section 28, Article 5 of the constitution requires that all offenses triable in a criminal court of record 'be prosecuted upon information under oath, to be filed by the prosecuting attorney.' Section 8257, C.G.L. of 1927, embodies a similar requirement and prescribes the form of the information. 'Under oath' contemplates that the jurat be made in the presence of one authorized to administer oaths, otherwise it is of no avail. The record discloses that the informations as originally filed were not so verified and for that reason were vulnerable to the plea in abatement. The new informations were filed on Dec. 20, 1938, more than two years after the offenses charged were alleged to have been...

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8 cases
  • Lowe v. State
    • United States
    • Florida Supreme Court
    • 25 Julio 1944
    ... ... Fla. 733] as to satisfy the running of the statute of ... limitations. See State ex rel. Silverman v. Coleman, ... 139 Fla. 656, 190 So. 811. The State is not bound to the ... exact ... ...
  • Mitchell v. State
    • United States
    • Florida Supreme Court
    • 1 Marzo 1946
    ... ... State, 88 Fla. 188, 101 So. 319; ... Perry v. State, 103 Fla. 580, 137 So. 798; State ... ex rel. Melson v. Peeler, 107 Fla. 615, 146 So. 188. An ... analysis and study of the cited cases ... than one occasion. See State ex rel. Silverman v ... Coleman, 139 Fla. 656, 190 So. 811; State ex rel ... Cox v. Adams, 148 Fla. 426, 4 So.2d ... ...
  • Cadle Co. v. G & G ASSOCIATES
    • United States
    • Florida District Court of Appeals
    • 16 Junio 1999
    ...that have required affidavits or documents to be sworn to in order to have legal effect. For example, in State ex rel. Silverman v. Coleman, 139 Fla. 656, 190 So. 811 (1939), the court considered a constitutional and statutory requirement that a criminal information be "under oath, [and] fi......
  • Horton v. Mayo
    • United States
    • Florida Supreme Court
    • 22 Octubre 1943
    ... ... [15 So.2d 328] ... committed. Rouse v. State, 44 Fla. 148, 32 So. 784, ... 1 Ann.Cas. 317 ... The Criminal ... limitations has run.' State ex rel. Silverman v ... Coleman, 139 Fla. 656, 190 So. 811, 812 ... ...
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